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Opinion: USS Lassen’s Transit of Subi Reef Was Not So ‘Innocent’

USS Lassen (DDG-82) is underway in the Philippine Sea in 2013. US Navy Photo

USS Lassen (DDG-82) is underway in the Philippine Sea in 2013. US Navy Photo

Much has been made about the recent transit of the USS Lassen (DDG-82) within 12 nautical miles of Subi Reef in the South China Sea. To review, that is because China has built an artificial island on top of Subi Reef, claims it as sovereign territory, and claims territorial rights to the seas around the reef.
It is important to note that Subi Reef is naturally a “low-tide elevation”; that is, it is only exposed to the atmosphere at low tide. In its natural state, before China built an artificial island on top of it, the reef was entirely submerged at high tide. Under international law, natural low-tide elevations do not have territorial waters associated with them. Building an artificial structure, including an island, on top of a low-tide elevation does not grant it additional territorial attributes: it is still a low-tide elevation under international law.

The United States has a longstanding program of challenging maritime claims that it believes are not consistent with international law, and conducts freedom of navigation (FON) operations to challenge those claims. The Center for Strategic and International Studies (CSIS) Asia Maritime Transparency Initiative (AMTI) maintains a good primer on FON operations, and there are a number of good articles on the subject of Subi Reef and the Lassen transit that discuss those issues.

Of concern, however, is the characterization of this transit as being one of “innocent passage.” Innocent passage is the right of any ship to transit the territorial waters of another nation, as long as it is “innocent”. For warships, that includes operating in a non-confrontational manner, such as not exercising or practicing weapons, conducting surveillance, launching or recovering aircraft, and so forth.

Chinese Subi Reef facilities in April 2015. Digital Globe Photo via The Diplomat

Chinese Subi Reef facilities in April 2015. Digital Globe Photo via The Diplomat

Innocent passage for a warship requires two things: non-confrontational behavior and transiting through the territorial waters of another nation. Innocent passage is not “innocent” if a warship exhibits prohibited, confrontational behavior, and it must, by definition, involve actually transiting recognized territorial waters. It is not necessary to recognize what country claims sovereignty of the waters, it is simply necessary that the waters are sovereign territorial waters of some nation under international law. In fact, China, Taiwan, the Philippines, and Vietnam all claim sovereignty of Subi Reef.

We have already seen that Subi Reef has no territorial waters associated with it, so by the logic of the “and” conjunction, innocent passage is not possible—not by Lassen, and not by any ship of any nation transiting within 12 nautical miles of Subi Reef. It does not matter if Lassen was operating in a non-confrontational manner or not; by definition, Lassen did not pass through any nation’s territorial waters and therefore could not be conducting an innocent passage. In fact, by operating in a non-confrontational manner it clouds the issue as to the actual nature of the transit. It would have been more effective if Lassen had exhibited at least some of the behaviors prohibited under international law for innocent passage to underscore that is not what she was doing.

To suggest that Lassen was conducting an innocent passage when she transited within 12 nautical miles of Subi Reef is to suggest that Subi Reef has territorial waters, which suggests that some nation maintains sovereign rights to those waters—not, I think, a message the U.S. Navy wants to send to the world.

  • Walter

    Exactly correct. Obfuscation of the issue with loose language is a big problem.

  • Curtis Conway

    Send the MAGTF through conducting flight ops. Make sure they fly over the island. To do otherwise is to validate their claim. Makes one wonder why we have not done it already, and our chief administrator is supposed to be a lawyer.

    • Tony

      Exactly!

  • Bush+Obama=Satans love child

    I hate how dumb people have become to defining actions & things like this so called innocent passage Lassen performed but is really what China conducted in Alaska. We own the Aleutian Islands where China doesn’t own the Subi Reef. Defining a radio controlled item a drone when it can’t operate without a man in the loop. Calling a semi automatic rifle an assault weapon. People just parrot what ignorant media spews into their minds.
    If we wanted to show China we don’t respect their claims we would have been inside of 12 miles while blazing radar & launching helos or some other military style action.

    • tra la la la la di da

      Yes, but then we would look like assholes, so probably best your opinions stay here and are not consider in actual military action.

  • Tony

    The fact that China has not welcomed the “innocent passage” as tacit recognition of their sovereignty over the waters around Subi Reef is proof that they are not 10 feet tall after all. It seems to me that China missed a golden opportunity here.

  • sragsd0416

    CAPT Cowden makes some excellent points and is to be commended on bringing forth the fact that terminology is everything in cases where legality is challenged. Further discussing with the Chinese Navy Leadership the simple passage of a US Warship through International Waters was also a mistake, unless we are adopting a policy of discussing all such passages with said leadership. If all nations adopted positions such as China’s then Oil Platforms would be considered an Island and National Territory…

  • Ako Madamosiya 毛むくじゃら

    Subi Reef and Mischief Reef (another one with and an airfield being constructed) does not meet the 12 mile territorial limit. Scarborough Shoal is another gray area because technically China has no business being there. It stole it from the Philippines when both was suppose to withdraw at the same time during a standoff a couple of years ago and was brokered by the US. It reneged an agreement and sealed the Shoal’s entrance instead with behemoth Coast Guard ships and destroyers lurking in the background. Lassen should have passed by Fiery Cross instead (likely entitled to 12 mile limit), then now we’re talking.

  • Ako Madamosiya 毛むくじゃら

    Next time the US Navy should pass by Mischief Reef 1000 meters away from its shores and airfield and on its way back do a humanitarian assistance to the beleaguered Philippine Marines aboard BRP Sierra Madre (Ex-USS Harnett County) close by.

  • Marcd30319

    Translation – Since Subi Reef is not part of any country’s territory, what the USS Lassen did was not innocent passage but simply passage.

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